Search Warrants

Published by Geoff Harrison | 10 May 2025

The statutory requirements and powers relating to search warrants are set out under Part 5, Division 2 of the Law Enforcement (Powers and Responsibilities) Act 2002 ('the Act'). Kirby P sets out the history relating to search warrants in the decision of Carroll v Mijovich. Under the Act, a police officer can apply to an eligible issuing officer if the police officer believes that there is, or within 72 hours (or 7 days for criminal organisation search warrant or 10 days for a covert search warrant) will be, in or on the premises a thing connected with a searchable offence in relation to the warrant: s47 of the Act. A searchable offence is defined under s46A of the Act.

An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant: s48 of the Act. In deciding whether there are reasonable grounds to issue the warrant, the eligible issuing officer must consider the reliability of the information on which the application is based, including the nature of the source of the information and if the warrant is required to search for a thing in relation to an alleged offence--whether there is sufficient connection between the thing sought and the offence: s62(3) of the Act.

Once issued, a search warrant allows police to enter the premises and search the premises for things connected with a particular searchable offence in relation to the warrant: s47A of the Act. A person executing a search warrant issued may seize and detain a thing (or thing of a kind) mentioned in the warrant, and may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence: s49 of the Act. During the execution of a search warrant, a police officer may also search any person found in or on the premises who the person executing the warrant reasonably suspects of having a thing mentioned in the warrant: s50 of the Act.

A warrant is not invalidated by a defect other than a defect that affects the substance of the warrant in a material particular: s76 of the Act.

It is an offence to obstruct or hinder a person executing a search warrant without reasonable excuse. The maximum penalty is 100 penalty units ($11,000) and/or 2 years imprisonment.

Other Sources:

• Law Enforcement (Powers and Responsibilities) Bill, Second Reading Speech: Legislative Assembly, 17 September 2002

• Guidelines as to the execution of search warrants on solicitors' offices (3 May 1995)

• General Guidelines between the Australian Federal Police

  and the Law Council of Australia as to the Execution of Search Warrants

  on Lawyers' Premises (3 March 1997)

• Law Enforcement Conduct Commission: Covert Search Warrants & Preventative Detention Orders, Review, 3 July 2022

• Guidelines for the execution of search warrants on Barrister's Chambers (21 January 2013)

Cases:

• Carroll v Mijovich (1991) 25 NSWLR 441 (Failure to record grounds relied upon)

• Johnson v Commissioner of New South Wales Police [2025] NSWSC 21

• Harland v Murphy [2022] NSWSC 1376

• Joukhador v Commissioner of Police [2018] NSWSC 872

• NSW Police v Manwarring [2022] NSWLC 24

• New South Wales v Corbett [2007] HCA 32 (see [18] and [40] re strictness relating to search warrants).

• Black v Breen and Anor [2000] NSWSC 987 (Failure to provide occupiers' notice).

• George v Rockett [1990] HCA 26

• Lee v New South Wales Commissioner of Police [2017] NSWSC 1594

• MAJZOUB v KEPREOTIS [2009] NSWSC 1498

• McQUEEN v HAWI and ANOR [2008] NSWSC 136

• BALLIS v RANDALL [2007] NSWSC 422

• Crowley v Murphy (1981) 52 FLR 123

  
  

Extracted Legislation:

46A SEARCHABLE OFFENCES

(cf former LEPRA, s 47(1))

(1) For the purposes of this Part,

"searchable offence" in relation to a warrant--

(a) means any of the following--

(i) an indictable offence,

(ii) a firearms or prohibited weapons offence,

(iii) a narcotics offence,

(iv) a child abuse material offence,

(v) an offence involving a thing being stolen or otherwise unlawfully obtained,

(vi) a computer offence, and

(b) if the warrant is a covert search warrant--means a serious offence, and

(c) if the warrant is a criminal organisation search warrant--means an organised crime offence.

(2) In subsection (1)--

"child abuse material offence" means an offence under section 91H or 578C of the Crimes Act 1900 .

"computer offence" means an offence under the Crimes Act 1900, Part 6.

"firearms or prohibited weapons offence" means an offence under the Firearms Act 1996 , the Weapons Prohibition Act 1998 or a regulation made under either of those Acts, being an offence committed in respect of a firearm, an imitation firearm or a prohibited weapon within the meaning of those Acts.

"narcotics offence" means--

(a) an offence under the Poisons and Therapeutic Goods Act 1966 , or a regulation made under that Act, being an offence committed in respect of--

(i) a restricted substance prescribed for the purposes of section 16 of that Act, or

(ii) a drug of addiction within the meaning of that Act, or

(b) an offence under the Drug Misuse and Trafficking Act 1985 or a regulation made under that Act.

"organised crime offence" means any serious indictable offence arising from, or occurring as a result of, organised criminal activity.

"serious offence" means the following--

(a) any indictable offence punishable by imprisonment for a period of 7 or more years and that involves the following--

(i) the supply, manufacture or cultivation of drugs or prohibited plants,

(ii) the possession, manufacture or sale of firearms within the meaning of the Firearms Act 1996 ,

(iii) money laundering,

Note : For example, section 193B of the Crimes Act 1900 .

(iv) car and boat rebirthing activities,

Note : For example, section 154G of the Crimes Act 1900 .

(v) the unauthorised access to, or modification or impairment of, computer data or electronic communications,

(vi) an activity involving theft carried out on an organised basis,

(vii) violence causing grievous bodily harm or wounding,

(viii) the possession, manufacture or supply of false instruments,

(ix) corruption,

(x) destruction of property,

(xi) homicide,

(xii) kidnapping,

(b) any offence under Division 10 (Sexual offences against adults and children) of Part 3 of the Crimes Act 1900 punishable by imprisonment for a period of 7 or more years,

(c) an offence under section 80D (Causing sexual servitude) or 80E (Conduct of business involving sexual servitude) of the Crimes Act 1900 ,

(d) an offence under section 93FA (Possession, supply or making of explosives) of the Crimes Act 1900 ,

(e) an offence under Division 15 (Child prostitution) or 15A (Child pornography) of Part 3 of the Crimes Act 1900 ,

(f) an offence under section 308F (Possession of data with intent to commit serious computer offence) or 308G (Producing, supplying or obtaining data with intent to commit serious computer offence) of the Crimes Act 1900 ,

(g) an offence of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting, an offence referred to in paragraphs (a)-(f).

(3) For the purposes of this section, an activity involving theft is carried out on an

"organised basis" if--

(a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and

(b) it is carried out for profit or gain.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 47

Power to apply for search warrants

(cf Search Warrants Act 1985 s 5, Crimes Act 1900, ss 357EA, 578D, former LEPRA, s 47)

(1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.

(2) Without limiting subsection (1), a police officer may apply to an eligible issuing officer for a search warrant if the police officer believes on reasonable grounds that a child prostitution offence has recently been committed, is being committed, or within 72 hours will be committed, on or with respect to premises.

(3) An eligible applicant may apply to an eligible issuing officer for a covert search warrant to authorise the covert entry and search of premises if the eligible applicant--

(a) suspects on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with a searchable offence in relation to the warrant, and

(b) considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises.

(3A) An eligible applicant may apply to an eligible issuing officer for a criminal organisation search warrant in respect of premises if the eligible applicant has reasonable grounds to suspect that there is, or within 7 days there will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.

(4) To avoid doubt, an application may be made under this section with respect to an act or omission that would be a searchable offence for the warrant if done, or omitted to be done, in New South Wales even though the act or omission occurred outside New South Wales and was not an offence against the law of New South Wales.

(5) In this section--

"child prostitution offence" means an offence under section 91D, 91E, 91F or 91G of the Crimes Act 1900.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 47A

General authority conferred by search warrants

(cf former LEPRA, s 48)

(1) A search warrant authorises any executing officer for the warrant--

(a) to enter the subject premises, and

(b) to search the premises for things connected with a particular searchable offence in relation to the warrant.

Note : Section 67 requires that an occupier of the premises entered under a search warrant (other than a covert search warrant) be given notice on entry or as soon as practicable afterwards. Notice under a covert search warrant is not required to be given to the occupier on entry--see section 67A which permits the deferral of the giving of notice for up to 3 years in total in specified circumstances.

(2) If the search warrant is a covert search warrant, the executing officer is also authorised--

(a) to conduct the entry and search of the subject premises without the knowledge of any occupier of the subject premises, and

(b) if necessary to do so to enter and search the subject premises--to enter premises adjoining or providing access to the subject premises (

"adjacent premises" ) without the knowledge of the occupier of the adjacent premises, and

(c) to impersonate another person for the purposes of executing the warrant, and

(d) to do anything else that is reasonable for the purpose of concealing anything done in the execution of the warrant from the occupier of the premises.

Note: Other sections of this Act authorise other things to be done under search warrants.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 48

Issue of search warrants

(cf Search Warrants Act 1985, s 6, Crimes Act 1900, s 357EA, former LEPRA, s 48)

(1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant.

Note: See section 62(3) in relation to matters to be considered by an eligible issuing officer in determining whether there are reasonable grounds to issue a warrant.

(2) An eligible issuing officer to whom an application is made for a covert search warrant who is not satisfied that there are reasonable grounds for issuing the covert search warrant may, at the request of the eligible applicant (if the eligible applicant is a police officer), instead issue a search warrant that may not be executed covertly, but only if satisfied that there are reasonable grounds to do so.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 49

Seizure of things pursuant to search warrant

(cf Search Warrants Act 1985 , s 7, former LEPRA, s 49)

(1) A person executing a search warrant issued under this Division--

(a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and

(b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.

(2) Without limiting subsection (1), the power to seize and detain a thing includes--

(a) a power to remove the thing from the premises where it is found, and

(b) a power to guard the thing in or on those premises, and

(c) if it is a covert search warrant that authorises the placing of a kind of thing in substitution for a seized thing--a power to place a thing of that kind on the subject premises in substitution for a thing seized.

Note: For the disposal of things seized pursuant to a search warrant, see Division 2 of Part 17.

SECT 49A Return or retrieval of thing seized or placed

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 49A

Return or retrieval of thing seized or placed

(1) A covert search warrant may authorise the return of a thing seized under section 49(1)(a), or the retrieval of a thing placed under section 49(2)(c), if the warrant expressly authorises such a return or retrieval.

(2) If the covert search warrant authorises the return or retrieval of a thing, the subject premises may be re-entered by an executing officer, but only for the purpose of returning or retrieving the thing (as the case may be).

(3) Any re-entry to return or retrieve a thing must occur within 7 days of the first entry under the covert search warrant (or such longer period as is allowed, prior to the expiration of the 7-day period, by an eligible issuing officer).

(4) An executing officer authorised to re-enter premises and return or retrieve a thing under this section may do so with the aid of such assistants as the executing officer considers necessary.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 50

Search of persons pursuant to warrant

(cf Search Warrants Act 1985 , s 8, former LEPRA, s 50)

A person executing a search warrant issued under this Division may search any person found in or on the premises whom the person executing the warrant reasonably suspects of having a thing mentioned in the warrant.

Notes:

1 Under sections 99 and 100 a police officer or other person may arrest and take before an authorised officer to be dealt with according to law any person found in or on the premises whom the police officer or other person suspects on reasonable grounds of having committed an offence.

2 Division 4 of Part 4 contains provisions generally applicable to searches of persons.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 51

Inquiries pursuant to warrant related to child prostitution offences

Without limiting any other powers under this Division, a person executing a search warrant issued under this Division in relation to an offence under section 91D, 91E, 91F or 91G of the Crimes Act 1900 may make in the premises the subject of the warrant inquiries relating to any such offence.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 52

Obstruction or hindrance of person executing warrant

(cf Search Warrants Act 1985, s 9)

A person must not, without reasonable excuse, obstruct or hinder a person executing a warrant issued under this Division.

Maximum penalty--100 penalty units or 2 years imprisonment, or both.

...

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 62

Information in, and consideration of, application for warrant

(cf Search Warrants Act 1985 , s 12A, former LEPRA, s 62)

(1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information--

(a) the name of the applicant and details of the authority of the applicant to make the application for the warrant,

(b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved,

(c) the address or other description of the subject premises,

(d) if the warrant is required to search for a particular thing--a full description of that thing and, if known, its location,

(e) if the warrant is required to search for a kind of thing--a description of the kind of thing,

(f) if a previous application for the same warrant was refused--details of the refusal and any additional information required by section 64,

(g) any other information required by the regulations.

(2) In addition, an eligible issuing officer must not issue a covert search warrant unless the application for the warrant includes the following information--

(a) the name of the following persons--

(i) the occupier (if known) of the subject premises,

(ii) any person believed to have committed, or to be intending to commit, the searchable offence in respect of which the application is made,

(b) whether the occupier is believed to be knowingly concerned with the commission of that searchable offence,

(c) if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises--the address or other description of the premises that adjoin or provide such access and particulars of the grounds on which entry to those premises is required,

(d) any powers proposed to be exercised on entry to the subject premises that are sought to be authorised by the warrant under section 47A(2)(d),

(e) details of any covert search warrant that has previously been issued in respect of the subject premises.

(2A) In addition, an eligible issuing officer must not issue a criminal organisation search warrant unless the application for the warrant includes the following information--

(a) the name of the following persons--

(i) the occupier (if known) of those premises,

(ii) any person believed to have committed, or to be intending to commit, the searchable offence in respect of which the application is made,

(b) whether the occupier is believed to be knowingly concerned with the commission of the searchable offence.

(3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters--

(a) the reliability of the information on which the application is based, including the nature of the source of the information,

(b) if the warrant is required to search for a thing in relation to an alleged offence--whether there is sufficient connection between the thing sought and the offence.

(4) In addition, an eligible issuing officer, when determining whether there are reasonable grounds to issue a covert search warrant, is to consider the following matters--

(a) the extent to which it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises,

(b) the nature and gravity of the searchable offence in respect of which the application is made,

(c) the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the searchable offence is likely to be affected if the warrant is issued,

(d) whether any conditions should be imposed by the eligible issuing officer in relation to the execution of the warrant,

(e) if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises--

(i) whether this is reasonably necessary in order to enable access to the subject premises, or

(ii) whether this is reasonably necessary in order to avoid compromising the investigation of the searchable offence or other offence.

(5) The applicant must provide (either orally or in writing) such further information as the eligible issuing officer requires concerning the grounds on which the warrant is being sought.

(6) Nothing in this section requires an applicant for a warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person.

...

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 67

Notice to occupier of premises entered pursuant to warrant

(cf Search Warrants Act 1985 , s 15)

(1) An eligible issuing officer is to prepare and give an occupier's notice to the person to whom the eligible issuing officer issues a warrant.

(2) An occupier's notice--

(a) is to be in the form prescribed by the regulations, and

(b) must specify the following--

(i) the name of the person who applied for the warrant,

(iii) the date and the time when the warrant was issued,

(iv) the address or other description of the premises the subject of the warrant, and

(c) must contain a summary of the nature of the warrant and the powers conferred by the warrant.

(3) An occupier's notice under this section may be served personally or in such other manner as the eligible issuing officer who issued the warrant may direct.

(4) Time for service of notice--warrant other than a covert search warrant A person executing a warrant other than a covert search warrant must--

(a) on entry into or onto the premises or as soon as practicable after entry, serve the occupier's notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or

(b) if no such person is then present in or on the premises, serve the occupier's notice on the occupier of the premises within 48 hours after executing the warrant.

(5) If an occupier's notice cannot practicably be served on a person in accordance with subsection (4)(b), the eligible issuing officer who issued the warrant may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the occupier's notice to the attention of the occupier.

(6) An order under subsection (5) may direct that the occupier's notice be taken to have been served on the occupier on the happening of a specified event or on the expiry of a specified time.

(7) Service in accordance with an order under subsection (5) is taken to constitute personal service for the purposes of subsection (4).

(8) Time for service of notice--covert search warrant A person executing a covert search warrant must serve the occupier's notice on the person who was the occupier of the subject premises at the time the covert search warrant was executed as soon as practicable after the warrant is executed, unless the service of the notice is postponed under section 67A.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 68

Announcement before entry

(cf Search Warrants Act 1985 , s 15A)

(1) One of the persons executing a warrant must, before any of the persons executing the warrant enters the premises--

(a) announce that the person is authorised by the warrant to enter the premises, and

(b) give any person then in or on the premises an opportunity to allow entry into or onto the premises.

(2) A person executing a warrant is not required to comply with this section if the warrant is a covert search warrant or if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the warrant is not frustrated.

...

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 76

Defects in warrants

(cf Search Warrants Act 1985 , s 23)

A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.